1. The appellant in both these cases is the plaintiff in Original Suit No. 501 of 1887, on the file of the District Munsif of Madura, in which plaintiff sued for the recovery of Rs. 550 (with further interest) on the security of certain mortgaged property. From the Munsif's decree two separate appeals were preferred to the Subordinate Court of Madura (East). The result in both these appeals was adverse to the plaintiff. He thereupon preferred to this Court his Second Appeal No. 1299 of 1889, with reference only to his own first appeal (No. 465 of 1888), but objecting to the decree of the lower Appellate Court also in the appeal of fourth and fifth defendants (No. 462 of 1888). He was, therefore, directed to prefer a separate second appeal from this latter decree. Hence the Second Appeal No. 1002 of 1890.
2. The only question arising for decision in Second Appeal No. 1299 of 1889 is whether the lower Courts are right in holding that the mortgage bond I was not merged in the subsequent sale deed II, which both those Courts have agreed in finding was never carried into effect. Mr. Grant has admitted that he is unable to support this contention on behalf of appellant. Second Appeal No. 1299 of 1889 must therefore fail, and is dismissed with costs.
3. The question raised in Second Appeal No. 1002 of 1890 is whether the lower Appellate Court is right in holding that defendants Nos. 4 and 5 were justified in permitting first defendant's brother to appropriate Rs. 150 out of Rs. 700, the amount for which his house was sold under Exhibit VI. The Subordinate Judge has held that this was allowable under Section 82 of the Transfer of Property Act. For appellant it is contended that Section 82 is inapplicable, as it must be read together with the last clause of Section 60 of the same Act.
4. The following are the facts:--In 1884, first defendant and his divided brother Nagasamy jointly hypothecated to defendants Nos. 4 and 5 the plaint house together with a house belonging to Nagasamy for Rs. 800 (Exhibit I). Subsequently, in 1886 first defendant alone hypothecated his house alone to the plaintiff for a sum of Rs. 400 (Exhibit C). In January 1888 first defendant's brother Nagasamy sold his house under Exhibit VI (which is attested by defendants Nos. 4 and 5) for a sum of Rs. 700, of which these defendants accepted Rs. 550 as the moiety due to them under the joint mortgage of 1884, and allowed Nagasamy to retain the remaining Rs. 150.
5. The plaintiff's contention is that defendants Nos. 4 and 5 were not justified in allowing Nagasamy to retain this sum of Rs. 150, but should have insisted on payment to themselves of the whole Rs. 700, and that they have, under the circumstances, a lien on first defendant's house only for Rs. 400 and not for Rs. 550.
6. Section 82 of the Transfer of Property Act provides that where ' several properties, whether of one or several owners, are mortgaged to secure one debt, such properties are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, after deducting from the value of each property the amount of any other incumbrance to which it is subject at the date of the mortgage.' It is not contended in the present case that the property sold under Exhibit VI was of greater value than the plaint house. Assuming, therefore, that the houses were of equal value, Nagasamy's share of the debt being a moiety, all that he was liable to pay to defendants Nos. 4 and 5 under Exhibit I was Rs. 550, the other moiety being a charge on the first defendant's house.
7. With reference to the last clause of Section 82, it is to be observed that it is clearly not applicable to the present case, as Section 81 contemplates the mortgage of two properties owned by the same person:--?' If the owner of two properties mortgages them both, etc.' Nor do we think the last clause of Section 60 relied on behalf of appellant is applicable to this case. The section declares the right of the mortgagor to redeem; and its last clause is as follows:--Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only on payment of a proportionate share of the amount remaining due on the mortgage, except where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.
8. This proviso is clearly applicable only to parties who stand to each other in the relation of a mortgagor and mortgagee; and as no such relationship existed between plaintiff and Nagasamy, the proviso in question was clearly no bar to Naga-sainy's redeeming his property on payment to his mortgagees, the fourth and fifth defendants, of his share of the mortgage-debt due under Exhibit I.
9. The lower Court's decree is therefore right and this Appeal No. 1002 of 1890 is also dismissed with costs.